The forced divestiture is scheduled to take effect the day before Trump takes office. It’s unclear whether Trump will intervene.
The Supreme Court agreed on Wednesday to hear TikTok’s challenge to a law that would see the video-sharing app banned in the U.S. as of January 19, unless its Chinese parent company, ByteDance, sells the massively popular platform to a company that’s not under the de facto control of a foreign adversary.
The Court’s decision to hear the case comes two days after President-elect Donald Trump expressed during a free-wheeling press conference his desire to help “save” the video-sharing app, which he said has a “warm spot” in his heart.
“We’ll take a look at TikTok,” said Trump, who supported banning its continued operation in the U.S. during his first administration but has warmed to the app in recent months. Trump came out against a ban back in March around the same time he met with billionaire donor Jeff Yass, who owns a large share of the company.
National security hawks on and around Capitol Hill are keeping a close watch on what comes next.
If President Joe Biden does not issue a three-month extension for the video-sharing app — and the Supreme Court does not overturn the lower court’s decision or stay the law — app stores such as those of Apple and Google must comply with the law beginning January 19. Those companies, then, on the day before Trump is sworn in, must remove TikTok from their app stores and bar new downloads of the app, and they cannot allow any app updates for current users.
It’s difficult to predict the president-elect’s next move on TikTok because “nothing that Trump has said has technically contradicted the law,” says Michael Sobolik, a senior fellow in Indo-Pacific studies at the American Foreign Policy Council and author of Countering China’s Great Game.
The TikTok divestment schedule went into effect earlier this year when congressional leaders tucked a provision forcing its sale into a $95 billion foreign-aid package that sailed through both chambers with bipartisan support in late April. The legislation drew widespread support on Capitol Hill after lawmakers received classified briefings that raised alarm about the Chinese government’s oversight over the Beijing-owned app’s data-harvesting and surveillance capabilities, as well as its algorithm’s potential for spreading propaganda and meddling in elections.
The forced divestiture legislation allows the president to issue ByteDance a one-time extension of 90 days if he can certify to Congress that there is evidence of a path to qualified divestiture, complete with “binding legal agreements” to enable divestiture during that extension period.
“The legislation basically says that TikTok can continue to operate in the United States as long as they aren’t owned by ByteDance or a foreign adversary,” says John Moolenaar (R., Mich.), chairman of the House Select Committee on the Chinese Communist Party. “President Trump has an opportunity to negotiate and facilitate a divestiture of TikTok that would preserve access to the app in the United States, but also protect our national security and not have it in any way affiliated with Chinese Communist Party.”
But ByteDance is not currently pursuing a sale. On the contrary, the company is exhausting its options to challenge the legality of this forced divestiture, and TikTok CEO Shou Chew traveled to the president-elect’s Florida estate this week to lobby him against the divestiture requirement that is set to go into effect the day before Trump takes office.
Trump could respond in several ways. If TikTok refuses to divest from ByteDance, he could throw his hands in the air by putting the blame on Biden for signing the legislation into law as well as the video-sharing app’s parent company for declining to act before the deadline.
The second scenario is the ideal outcome for national security hawks on Capitol Hill — saving TikTok by finding a buyer that’s not affiliated with a foreign adversary.
Alternatively, Trump could play fast and loose with the legislation and find a way to get around the qualified-divestiture portion of the bill to keep its continued operations in the U.S. with its current parent company.
“In that case, in the short term, TikTok would survive,” says Sobolik, the American Foreign Policy Council fellow. “That would introduce legal challenges to the Trump administration, because you better believe there are concerned parents and concerned citizens and national security types who would file a lawsuit, basically saying: ‘You’re not enforcing the law as you should.’”
Congressional Republicans are hopeful that Trump will broker a deal.
“The president is on the same page as most of us, which is — the bill does not desire to shut down TikTok at all. The bill desires to have the Chinese Communist Party divest itself from the TikTok platform,” says Representative Dusty Johnson (R., S.D). “So listen, I hope they sell it. I hope somebody else runs it.”
Oral arguments before the Supreme Court will be held on January 10.